Alberta Law Review (ALR)
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The Alarm Bell is Sounding and the Regulator is at the Door: Emergency Response, Reporting, and Investigations in the Age of Heightened Compliance Monitoring and Enforcement
Get PDFIn light of recent disasters in the oil and gas industry, there is increasing public pressure to develop more robust processes for responding to such disasters in Canada. In this article, the authors examine the emergency response procedures currently in place, and consider how oil and gas producers, carriers, and processors can improve these procedures. The article begins by outlining the emergency response planning and incident reporting obligations incumbent on the oil and gas industry, which is followed by an overview of the regulatory inspection powers that exist to investigate real and potential environmental, workplace, and safety incidents. Finally, the article considers what responding to an actual emergency would look like, and proposes best practices for the oil and gas industry
Earth, Wind, and Fire: Power Infrastructure in Alberta’s New Age
Get PDFIn the wake of dramatic policy changes commencing in late 2015, including the Government of Alberta’s announcement of the Climate Leadership Plan, the Renewable Energy Program, and the decision to introduce a parallel capacity market into Alberta’s previous energy-only market, the future of Alberta’s electricity market is uncertain. However, regulatory intervention in an attempt to improve the function of electricity markets and encourage renewable generation is not a new concept.Other jurisdictions, including the United Kingdom, Germany, and jurisdictions in the United States, have used regulatory intervention to address issues in energy markets and to drive renewable generation. Regulatory intervention in these jurisdictions has not always achieved the intended consequences. In some cases, regulatory intervention has exacerbated issues it intended to solve, or created new problems. In other cases, regulatory intervention has relatively improved the function of electricity markets and incited renewable generation. This paper considers the evolution of energy policy and competing policy drivers, including system reliability, use of sustainable fuels to generate electricity, and price surges. The paper will discuss the success and failure of regulatory intervention in select jurisdictions, and how these lessons might apply in the new age of Alberta’s electricity market
Introduction – The Future Role of Health Law and Medicare: The Holy Grail of Access, Quality, and Sustainability
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Framed! The Failure of Traditional Agency Cost Explanations for Executive Pay Practices
Get PDFThis is the second article in a series exploring the empirical evidence arising from the increasing use of certain executive compensation best practices. The first article, “How Good Are Our ‘Best Practices’ When It Comes to Executive Compensation?” summarizes research findings that these best practices are responsible for most of the growth in executive compensation, and lead to suboptimal corporate performance. It also suggests that the best practices currently in widespread use contradict practices that are often very helpful to directors in setting appropriate incentives in real world circumstances.This article goes on to argue that failures in executive compensation are the result, not of overly powerful CEOs confronting supine boards, but rather of directors and management earnestly striving to follow bad “best practices” promulgated by the corporate governance industry. This can be seen in: (1) the pattern of cause and effect distinguishable in the history of changing North American and British pay practices; (2) the link between these questionable pay practices and various measures of board independence and managerial weakness; and (3) the increasing use of these pay practices in circumstances of increased shareholder power. The most obvious solution is to increase board autonomy in setting pay. Regulatory steps for doing so lay close at hand, and in some cases have been discussed for years
Hryniak v. Mauldin Comes to Alberta: Summary Judgment, Culture Shift, and the Future of Civil Trials
Get PDFAlberta’s law of civil procedure, and summary judgment in particular, has experienced a culture shift since the Supreme Court of Canada’s ruling in Hryniak v. Mauldin. This article asks whether litigation directed toward a conventional trial is now, or is soon to be, a thing of the past. Although intended to revive traditional trials as a realistic and timely resolution option, it is impossible to say yet if this will be Hryniak’s legacy in Alberta. Three things are clear in post-Hryniak Albertan jurisprudence, however: first, the Hryniak test governs the determination of summary judgment applications in Alberta; second, Alberta courts have embraced the call for proportionality in litigation procedure; and third, the Hryniak culture shift creates uncertainty for Alberta litigants
Indigenous Mental Health: Imagining a Future Where Action Follows Obligations and Promises
Get PDFThis article considers what it would mean if Canada fulfilled select existing commitments and obligations concerning the mental health needs of Indigenous peoples, as identified through current programs and recent jurisprudence: that is, where would we be if Canada carried through on existing commitments? After identifying the role of law in perpetuating poor mental well-being, it assesses programs for First Nations and Inuit peoples and determines they are unlikely to be effective without operational changes and responsive funding. The article then turns to the situation of Metis and non-status First Nations and the implications of Daniels v. Canada for changing the status quo – both by requiring appropriate mental health supports, and by dismantling the racist legal logic that has long undermined the mental well-being of non-status First Nations and Metis persons, by positioning them as not counting as true Indigenous peoples. The article concludes that merely fulfilling current state obligations could bring considerable short-term gains, and some long-term gains, for the mental well-being of Indigenous peoples in Canada
Autonomy, Equality, and Access to Sexual and Reproductive Health Care
Get PDFThe focus of this article is on access to sexual and reproductive health care, an essential aspect of reproductive justice. Although the scope of the problem is unknown, there are reasons to question whether Canadian women are able to access reproductive and sexual health services such as contraception and abortion. The author discusses these issues, and the significance of additional barriers that Canada’s First Nations, Metis, and Inuit women face in obtaining access to reproductive health care services. The author argues that providing meaningful access to sexual and reproductive health care is essential to ensuring women’s reproductive autonomy, and must be part of any political endeavour aimed at ensuring equal status for women
Organized Pseudolegal Commercial Arguments in Canadian Inter-Partner Family Law Court Disputes
Get PDFThis article addresses the phenomenon of Organized Pseudolegal Commercial Arguments (OPCA) from the lens of inter-partner disputes. The author begins by briefly reviewing the history of OPCA in Canada, and then proceeds to conduct a Canada-wide survey of OPCA judgments that involve inter-spouse conflict. One of the primary cases focused on is the Alberta judgment, Meads v. Meads. The author finds that there are few OPCA judgments to draw from, which he concludes is a result of the character of OPCA pseudolegal concepts. These concepts are typically intended to target government and institutional actors, rather than private individuals, meaning that these arguments are ill suited to family law situations
The New Normal? Natural Resource Development, Civil Disobedience, and Injunctive Relief
Get PDFIn recent years, contentious energy and pipeline projects have been mired in Aboriginal and environmental opposition, often leading to protests that involve civil disobedience. The authors argue that civil injunctions are increasingly considered to be the most appropriate method to resolve these events. Despite the inherent tension in using a civil lawsuit to enforce a public law, the judicial debate over whether to proceed through criminal or civil avenues has trended towards private law remedies. Consequently, entities who may be subject to interruptions caused by protests should be prepared to take measures to secure a civil injunction. The authors detail the legal steps required to receive injunctive relief and address some common pitfalls in enforcing these orders. Aboriginal rights and title concerns are also addressed
A Rational Approach to Cabinet Immunity Under the Common Law
Get PDFThe public interest immunity (PII) doctrine empowers the government to suppress information, the disclosure of which would injure the community as a whole. However, when such information is relevant to the fair adjudication of legal rights, a tension arises between two competing aspects of the public interest: the interest of good government and the interest of justice. This tension raises questions of constitutional importance. Who should decide which aspect of the public interest must win? How should that decision be made? The aim of this article is to address these questions. In the first section, it is claimed that the courts, as opposed to the government, should have the final word on the validity of PII claims, as it would be contrary to the rule of law to prevent them from meaningfully reviewing the validity of PII claims and controlling the admissibility of evidence in legal proceedings. In addition, because of their greater independence and impartiality, judges are better placed than public officials to fairly adjudicate PII claims, especially when the government is a party to the proceedings. No classes of government secrets, not even Cabinet secrets, should be exempted from judicial review. While there is a consensus on these principles under the common law, the level of deference afforded to Cabinet immunity claims, and the way in which these claims are assessed, is not consistent in the Commonwealth. To fix this shortcoming, in the second section, it is argued that the courts should adopt a new rational approach consisting of four pillars: a narrow standard of discovery, an executive onus of justification, a cost-benefit analysis, and a judicial duty to minimize injury. The implementation of a rational approach would bolster predictability, certainty, and transparency in the judicial assessment of Cabinet immunity claims, and foster a better balance between the interests of good government and justice